The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1887-04-28

Article 1853, revised statutes, has been
superseded by the amendment of April Is,
1888, so that it is substantially as follows
now: The party appealing, ETC., shall,
within ten days from the date of the judg-
ment, file with the Justice bond, with
two or more sureties approved by the JUS
tice, in double the amount payable, etc.
When such bond has been filed with the
justice the appeal shall be held to be per-
fected; but, if upon call of the docket upon
appearance day in the court the appellee
fails to appear in person or by counsel,
the case shall be continued; and, unless
due notice of the appeal, in writing, ETC.,
has been given appellee, no Judgment by
default shall be entered.
Article 1,640, revised statutes,.say when
an appeal has been granted, the justice
must Immediately make out transcript,
certify thereto, etc., and transmit the
same to the clerk of the county court.
Article 1,641, revised statutes - Such
transcript, etc., shall, if practicable, be
transmitted to the clerk of the county
court on or before the first day of the first.
term of court thereafter, and if there is
not time, they may be transmitted on or
before the first day of the second term.
In constructing these statutes we are of
the opinion that the amendment super
sedes the original article, and,if so, notice
of appeal is no longer necessary.
Article 1,640 says the transcript,
etc., must be filed Immediately,
and article 1,641 says it
it shall be done, if practicable, on or be-
fore the first day of the next term, and
this duty is not essential if not practical
BILE, and in fact is made dependent upon
the practicability of the matter. Appel
liant has nothing to do with the transmits
sion of the papers, and we thiuk it but
fair to presume if it is not done by the
first day of the term that it was not prac-
ticable, and the jus ice has done his duty
If the Justice files the transcript on or be-
fore the first day of the second term he
is presumed to have done his duty, and if
he does not the appellant must apply for
a writ of certiorari, and after the first
day of the second term is the only time
appellee can legally make motion to
dismiss. When the transcript is filed at
the first term, and not on the first day, it
is a case returnable to the second term, as
to the rights of appellee. If the papers
have not been filed by the first day of the
second term, nor applied for by certiorari
] by the second day of that term, then APP
pellee can move to dismiss, and it should
be granted under ordinary circumstances;
| and If he does not make the motion at the
second term he is presumed to have
waived his right; such motion being in re-
gard to an irregularity in tho proceedings
should be taken advantage of as soon as
available. In regard to the bond not be-
ing approved within ten days, we refer to
Article 1889, revised statutes which says
the appeal is perfected when the bond
has been filed with the Justice
and it is presumed that justice will not
receive and file on appeal bond without
approving it. The court erred in dis
missing the appeal because of the
reasons given above, and the judgment is
reversed and the cause remanded.
Missouri Pacific Railway company vs..
A. B. Kreft from Dallas county. Opinion
by White, p. j. Whilst the record in this
case shows that the Justices transcript
was not transmitted to the clerk of the
county court during the first term of said
court after appeal, it shows that tran
script was filed before the first
day of the second term of the
county court The motion to dismiss was
not filed at the second term, and came too
late. (See Jones VS.. Spann, supra.) Be-
cause it was error to sustain the motion
to dismiss the appeal, based on failure of
appellants to have the transcript filed in
| time, the judgment is reversed and the
cause remanded.
Hamp Wade, alias Hamp Banks, vs..
State, from Walker county. Opinion by
| Wilson, j.
1t was not error to override the excep-
ton to the indictment and the motion in
arrest of Judgment, both based on the
insufficiency of indictment, in that it does
not appear from its face whether defend
ant killed a man or beast, or some
inanimate object. It is alleged in the in
dictment that appellant killed "Smutty,
my darling" 1t has been repeatedly held
that in an indictment it is only necessary
| to allege the name of the deceased, and
whether the deceased is reasonable
creature in being" is question of proof
and not of pleading.
1t makes no difference if the name is an
unusual one, as the singularity of the
name would more certainly identify the
deceased. There being no statement of
cred, and being none in the case before
us, the judgment is affirmed.
Elk parte Chas. H. Sublett va. the State,
from Rockwell county. Opinion by Hurt, J..
This was suit to test a local option
election. A petition for an election was
filed with the county clerk, on November
%, 1876. On the same day at subsequent
hour the commissioners court met in
called session, and ordered an election on
December 26, but this election was not held
and at a called session of the commission
ers court, held December 7, an election
was ordered January 6, 1877, and local
option carried.
1t is a fact that the statute requires
that the election shall be ordered at the
first court after the petition is filed, and
if this is not done the election is void.
Having decided that the court had
right to order the election at a called SEES
sion, the question Is, was the petition
filed in time to constitute the session of
November 90 the first session. 1t was
decided In Lipari's case that it was.
The next question that arises is
whether the law requiring the election to
be ordered at the first session is manda-
tory or directory. 1t is evidently manda-.
tory, or else an INSCRIPTIONS court could
keep postponing the election otherwise,
and thus defeat the will Of the people.
The record does not support the prop
osition that the relator connived at his